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Federal court maintains stay on Khadr habeas petition

By Dwyer Arce

[JURIST] The US District Court for the District of Columbia [official website] on Tuesday allowed [opinion, PDF] Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] to amend his 2004 habeas corpus petition, but refused to lift the stay on the petition pending the conclusion of his military commission. The petition was stayed under a criteria set forth by the US Supreme Court's 1975 decision in Schlesinger v. Councilman [opinion text], staying action on the petition until the resolution of the military commission proceedings because the claims in Khadr's habeas petition can be raised during the commission or in the appeals process. Judge John Bates still allowed Khadr to amend his petition, finding that it was not "futile" as the government alleged, because the stay may be lifted after Khadr concludes his appeals from the commission. Khadr argued that the intent for district courts to hear his habeas petition despite the ongoing commission was demonstrated by the differences in the military commission acts of 2006 and 2009 [texts, PDF], in which § 950j(b) of the 2006 act, providing for district court review only after the conclusion of the military commission, was removed. Bates rejected this. Additionally, the court maintained the stay on the petition despite Khadr's argument that the amended petition fell under one of the exceptions to Councilman, arguing that the military lacked personal jurisdiction [Cornell LII backgrounder] over him because he was a juvenile at the time of his capture and that the military commission system established by Congress was unconstitutional. Bates rejected both arguments, finding that the jurisdictional argument did not fall with the Councilman exceptions, and cited the Supreme Court case of Hamdan v. Rumsfeld [Cornell LII syllabus] in upholding the constitutionality of the military commissions.

A US military lawyer for Khadr announced Saturday that he will vigorously defend Khadr at his US military commission trial scheduled to begin August 10 [JURIST reports]. Khadr fired his US civilian lawyers earlier this month and requested that his US military lawyer be fired as well. Judge Patrick Parrish denied Khadr's request and ordered US Army Lt-Col. Jon Jackson to remain Khadr's lawyer and provide him with a defense at trial. At a pre-trial hearing held last week, Khadr informed the court that he had previously rejected a plea deal [JURIST report] offered by the US government, which would have resulted in a five-year prison sentence. Khadr told the court that the agreement was a ploy by the US government to look good in the eyes of the international community and that he would not be used to achieve US goals. Khadr also informed the court that he did not wish to mount a defense at trial because he believed the outcome would be the same regardless of his defense and that he had no hope of obtaining justice through the legal process. Khadr is facing murder and terrorism charges [JURIST report] for allegedly throwing a grenade that killed one US soldier and injuring another. If he is found guilty, he could face a life sentence. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text].

Full post as published by JURIST - The Paper Chase on July 21, 2010 (boomark / email).